Sentencing Bench Book — Particular offences

Damage by fire and related offences

[63-000] The statutory scheme

Part 4 Div 2 Crimes Act 1900 contains offences of destroying or damaging property by means of fire: ss 195, 196 and 197. These offences are usually dealt with summarily: Sch 1 Criminal Procedure Act 1986. From 15 February 2008, the term “maliciously” in s 195 was replaced by the fault element — “intentionally or recklessly”: Crimes Amendment Act 2007.

[63-010] Destroying or damaging by fire

The common law offence of arson was abolished by the Crimes (Criminal Destruction and Damage) Amendment Act 1987. The common law statements about arson assist in applying the purposes of punishment and also in assessing the objective seriousness of crimes committed under ss 195–198. In Porter v R [2008] NSWCCA 145, Johnson J said at [81]:

The crime of arson may be committed in a variety of circumstances. It is an extremely serious and dangerous crime: R v James (1981) 27 SASR 348 at 351; R v Davies at 358 [44]. The motive of the offender is relevant to an assessment of the objective seriousness of the offence: Newton v State of Western Australia [2006] WASCA 247 at [13]. Courts have observed that arson is very easy to commit, usually with destructive (if not tragic) consequences: R v Catts (1996) 85 A Crim R 171 at 176; Newton v State of Western Australia at [12]. It has been said that arson is often a difficult crime to detect: R v Davies at 370 [97]. Consideration of factors such as these has led courts to emphasise the importance of general deterrence in arson cases.

Destroying or damaging by fire encompasses a vast array of criminal behaviour, particularly under s 195(1)(b): R v Pitt [2001] NSWCCA 156 at [29]. Factors relevant to assessing the objective seriousness of a given offence include:

  • extent of the damage caused: R v Elzakhem [2008] NSWCCA 31 at [45]; Porter v R at [56]. For example, an offence may be considered serious where damage was done to a limited public resource such as public housing: R v Pitt at [27], or where it involved “substantial loss and personal stress” to small business owners: Porter v R at [83].

  • potential risk of injury to other people: Porter v R at [80]; R v Dinos [1999] NSWCCA 208 at [8]–[10]

  • possible spread of the fire: R v Baker [2000] NSWCCA 85 at [16]: Porter v R at [80]

  • offender’s knowledge of the financial effects of their conduct. For example, where the property is uninsured: R v Priest [2000] NSWCCA 27 at [14].

  • offender’s motive — although the lack of motive does not mitigate the seriousness of the crime: R v Porter at [81], [84]

  • degree of planning and premeditation: R v Karibian [2007] NSWCCA 334 at [28], R v VAA [2006] NSWCCA 44 at [45].

[63-012] Section 197: dishonestly destroy or damage property and the De Simoni principle

Section 197(1) provides that a person who dishonestly, with a view to making a gain for that person or another, destroys or damages property is liable to imprisonment for 7 years (s 197(1)(b)) or where it was committed dishonestly and for financial gain, the maximum is imprisonment for 14 years (s 197(1)(b)). In Ruge and Cormack v R [2015] NSWCCA 153, the sentencing judge took into account as an aggravating factor, when sentencing Cormack, that he was aware Ruge wanted to commit an “insurance job”. However, although Ruge was sentenced for an offence under s 197(1)(b), Cormack was only charged with an offence contrary to s 195(1A)(b) (damage or destroy property by means of fire in company, carrying a maximum penalty of 11 years with no element concerning financial gain). The court held that there was a breach of the principles in The Queen v De Simoni (1981) 147 CLR 383 because the judge took into account a circumstance of aggravation with which Cormack was not charged but which would render him liable to a more severe penalty under s 197(1)(b).

[63-015] Section 198: intention to endanger life and the De Simoni principle

Section 198 provides that a person who destroys or damages property intending, by the destruction or damage to endanger the life of another, is liable to imprisonment for 25 years. The offence only requires an intention to endanger life. It is a breach of the principle in The Queen v De Simoni (1981) 147 CLR 383 to take into account an intention to kill: Cassidy v R [2012] NSWCCA 68 at [6], [22]. The judge in Cassidy effectively sentenced the applicant for offences in Pt 3 Div 3 Crimes Act headed “Attempts to murder” (ss 27–30). Although those offences have the same maximum penalty as an offence under s 198, they attract standard non-parole periods and require an intention to kill. They are therefore “more serious” within the meaning of that term in De Simoni: Cassidy at [7], [26].

[63-020] Bushfires

It is an offence under s 203E Crimes Act 1900 to intentionally cause a fire and to be reckless as to the spread of the fire to vegetation. The offence is punishable by up to 14 years’ imprisonment, with a standard non-parole period of 5 years. The serious nature of the offence is reflected in the maximum penalty: R v Mills (2005) 154 A Crim R 40 at [53]. Although an offence may be committed without regard for public safety, this circumstance should not be given separate consideration as an aggravating factor under s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999: R v Mills at [56].

In R v Mills at [54]–[57] the court found that two offences under s 203E(1) fell within the upper range of objective seriousness, subject only to the respondent’s mental condition, which did not require substantial mitigation. The court outlined factors relevant to the seriousness of the offence at [55], including the damage caused, the offender’s awareness of the potential harm caused by bushfires and his ongoing criminality.